In a copyright infringement dispute between a multi-level marketing company and an anonymous blogger, the U.S. Court of Appeals in Cincinnati has directed a district court to reconsider its refusal to unmask the blogger post-judgment, in light of the presumption in favor of open records. The blogger had been found liable for infringing an edition of the marking company’s textbook and had been ordered to destroy all copies of the book in his possession. The district court deemed that unmasking the defendant was unnecessary to achieve the limited relief ordered. Stating that this was a case of first impression, the appellate court formulated a balancing test that weighed the interest of the public in the openness of judicial records, the plaintiff’s interests in obtaining the defendant’s identity, and the defendant’s interest in maintaining anonymity as an aspect of constitutional free speech rights. The case was remanded with instructions for the district court follow this balancing test in reconsidering its decision not to unmask the defendant (Signature Management Team, LLC v. Doe, November 28, 2017, White, H.).

Plaintiff Signature Management Team, LLC ("Team") sold materials designed to help customers operate multi-level marketing businesses. The defendant, designated as "John Doe," anonymously ran a blog called "Anthrax," where he criticized multi-level marketing companies, including Team. Doe posted a hyperlink on his blog to a downloadable copy of the entirety of the fourth edition of a book copyrighted by Team, "The Team Builder’s Textbook." At the time of the infringement—January 18, 2013—the book was in its ninth edition. After Team served the blog’s host, Automattic, Inc., with a take-down notice under the Digital Millennium Copyright Act, Doe removed the hyperlink to the book.

On September 19, 2013, Team filed suit against Doe for copyright infringement, seeking injunctive relief, including a request that the district court identify Doe. Doe asserted fair use and copyright misuse defenses and contended that he had the right to speak anonymously. In response to Team’s motion to compel discovery of Doe’s identity, the district court declined to unmask Doe at that time because unmasking an anonymous speaker was a significant and irreversible harm, and there was a chance Doe could prevail on the fair use defense. Doe was ordered, however, to reveal his identity to the court and to Team’s attorneys, subject to a protective order.

After discovery, the district court granted summary judgment in favor of Team, but limited relief to an injunction requiring Doe to destroy all copies of the book in his possession. The district court denied Team’s motion for further injunctive relief, finding that unmasking Doe was unnecessary to ensure that Doe would not engage in future infringement and that Doe had already declared that he had complied with the court’s destruction order. Team appealed the district court’s refusal to unmask Doe.

Right to speak anonymously. The Sixth Circuit noted that a person’s decision to speak anonymously was an aspect of the freedom of speech protected by the First Amendment. Although courts had developed balancing tests regarding discovery of a speaker’s identity in the context of anonymous speech on the Internet, no case had considered whether and under what circumstances a court can properly protect a party’s anonymity after judgment. While prejudgment cases often dealt with a plaintiff’s need to unmask a defendant in order to effect service of process, and the tests were constructed to safeguard against unmasking potentially non-liable defendants, these considerations were not at play here. The entry of a judgment against Doe largely eliminated the concerns present in prejudgment cases, the court said, because Doe’s liability had been established. On the other hand, the court cautioned, there was no practical need to unmask the defendant when he had fully complied with the relief granted.

Presumption of open judicial proceedings. Doe’s anonymous speech rights conflicted with another important post-judgment interest, the court said: the presumption of openness in judicial proceedings. Only the most compelling reasons justified nondisclosure of judicial records, and even when nondisclosure was justified, the nondisclosure must be narrowly tailored to serve the relevant reasons for maintaining secrecy. The court noted that the present case involved revealing Doe’s identity to Team—a party in the litigation—as well as the public, making it slightly different from most cases involving the unsealing of records, which only implicated the public’s interest in learning the information.

Presumption in favor of unmasking. In this issue of first impression, the Sixth Circuit held that like the general presumption of open judicial records, there is also a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff. In making decisions whether or not to unmask, courts must consider the public interest in open records, as well as the plaintiff’s need to learn the anonymous defendant’s identity in order to enforce its remedy. In determining the public interest in the disclosure of an anonymous defendant’s identity in a copyright case, relevant facts were the reach of the copyrighted material, the economic losses suffered by the copyright holder, the reach of the infringed version of the copyrighted material, and the intent of the infringer, the court said. With respect to the plaintiff’s need to unmask, the presumption in favor of disclosure was stronger or weaker depending on the plaintiff’s need to unmask the defendant in order to enforce its rights. A plaintiff who obtained an ongoing remedy, such as a permanent injunction, will have a strong interest in unmasking an anonymous defendant, whereas a plaintiff will have little need to unmask a Doe defendant who willingly participated in the litigation and complied with all relief ordered. In addition, the Sixth Circuit said, when the public interest was minimal and the anonymous defendant’s interest in remaining anonymous was substantial, a district court could reasonably condition the defendant’s continued anonymity on the satisfaction of the judgment within a certain timeframe. Finally, an anonymous defendant could rebut the presumption of openness by showing that unmasking would chill substantial protected speech.

Balancing the factors on remand. "On remand, the district court should weigh the factors favoring anonymity against the public’s interest in open proceedings in general and in this particular copyright-infringement lawsuit, as well as plaintiff’s interest in unmasking Doe," the Sixth Circuit said. Although Doe’s speech was not entitled to First Amendment protection because it constituted copyright infringement, the speech occurred in the context of anonymous blogging activities that were entitled to such protection, the court noted. An order unmasking Doe could hinder his ability to engage in anonymous speech in the future. The court also noted that because Doe had already complied with all aspects of the court’s order, there will be no need for monitoring whether or not the district court ultimately decides to unmask Doe. The case was remanded with instructions to apply the presumption of openness and to reconsider whether to unmark Doe’s identity.

Dissenting opinion. Circuit Judge Richard Fred Suhrheinrich dissented. In Judge Suhrheinrich’s view, no balancing was required because Doe’s infringing speech was not protected. "To the extent that unmasking him here will harm his ability to exercise his right to anonymous speech in the future, that is collateral to the issue before us and therefore not properly considered in this proceeding," Judge Suhrheinrich said, adding that he saw no need for further analysis and would remand with instructions that the district court reveal Doe’s identity.

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